Court Rules on Legality of Some Preventive Care Mandates

On May 15, 2023, the US Court of Appeals for the Fifth Circuit issued a stay on the Braidwood ruling discussed below.  While the Fifth Circuit works on the case, the preventive care requirements addressed below remain intact without change.

Under the Affordable Care Act (ACA), non-grandfathered health plans are mandated to cover certain preventive care services in-network with no cost sharing.  This has largely been heralded as a commonsense mandate, as it removes the cost barrier to obtain recommended screenings and should help avoid or mitigate more serious and expensive health conditions later, ultimately saving employers and employees money.

However, the mandate to provide free contraceptives has resulted in much litigation.  After several lawsuits and Supreme Court appearances, these lawsuits have largely subsided.  In 2018, regulators (a) granted virtually all employers with a sincerely held religious belief exemption from contraceptives to which they object and (b) stopped requiring employers to participate in an “accommodation” process to make the contraceptives to which they object available via other means.

Now it appears there may be other contentious preventive care mandates, and a new US District Court ruling may lead to two substantial changes:

1. The U.S. Preventive Services Task Force’s (USPSTF) “A” or “B” recommendations issued or updated on or after March 23, 2010 cannot be enforced as mandatory “because the members of the Task Force have not been appointed in a manner consistent with Article II’s Appointments Clause.” This could affect the following services:
   1. 2022 recommendations for screening youth for anxiety, depression, and suicide risk
   2. 2021 recommendation expanding colorectal cancer screening from age 50 to 45
   3. 2021 recommendation expanding prediabetes screening from age 40 to 35
   4. And other updates since 2010 as listed here
2. Under the Religious Freedom Restoration Act (RFRA), employers with a sincerely held religious belief may claim exemption from the HIV PrEP mandate (which includes prescription drugs and related care visits, labs, and other required services as discussed in FAQs Part 47)

It’s too early to tell whether this ruling will stand, and regulatory agencies have already begun the formal process to appeal.  In the meantime, they have issued FAQs Part 59 to explain how this court decision impacts things today.  We will be monitoring this case and keeping you informed.

IMA will continue to monitor regulator guidance and offer meaningful, practical, timely information.

This material should not be considered as a substitute for legal, tax and/or actuarial advice. Contact the appropriate professional counsel for such matters. These materials are not exhaustive and are subject to possible changes in applicable laws, rules, and regulations and their interpretations.